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Case Number: 160476

Whether the Defence Forces was justified in refusing access to records relating to a complaint of bullying made by the applicant

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 27 January 2016, the applicant sought access to records relating to the investigation of a complaint of bullying made by her against another member of the Defence Forces. She also requested that the case file she submitted to the investigating officers be returned to her. On 4 April 2016, the Defence Forces refused the request under section 42 of the FOI Act on the ground that the Act does not apply to the records sought. On 26 April 2016, the applicant sought an internal review of that decision. On 11 May 2016, the Defence Forces upheld its original decision. The applicant sought a review by this Office of that decision on 27 October 2016.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the records at issue and to the correspondence between this Office and both the applicant and the Defence Forces on the matter.

Scope of the Review

During the course of the review, the Defence Forces accepted that it was not entitled to refuse the request under section 42. Instead, it sought to rely on section 37 of the Act to refuse access to the 21 records identified as coming within the scope of the request, namely an investigation report and associated statements and annexes. Therefore, this review is concerned solely with whether the Defence Forces was justified in deciding to refuse access to these 21 records in question.

In her original request, the applicant also sought the return of an original case file which she had provided to the Military Police. The FOI Act does not provide for the release of original versions of records. However, during the course of the review the Defence Forces agreed to provide the applicant with a copy of the case file outside of the formal FOI process.

Preliminary Matters

It should be noted that the courts have taken the view that, under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large.

Additionally, section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Finally, it is important to note that in determining this matter, I am limited to considerations solely based on the relevant provisions of the FOI Act and that this Office does not have a general appellate or complaints-handling function in respect of public bodies.

Findings

Section 37(1) of the FOI Act provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Furthermore, section 37(7) provides that an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester, commonly referred to as joint personal information. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or (b) is held by a public body on the understanding that it would be treated by it as confidential.

The applicant has objected to the Defence Forces' reliance on section 37, and during a telephone conversation with Simon Noone, Investigator, she offered to give an undertaking that, if her request was granted, she would not release the records to any other party. As I have outlined above, release under the FOI Act is regarded, in effect, as a release of information to the world at large. In the recent High Court decision in FP v Information Commissioner [2016] IEHC 771, which was an appeal against a decision of this Office to refuse access to records relating to a complaint of sexual abuse against the appellant, McDermott J determined that there was no power under the FOI Act to impose any conditions on the use of records after disclosure, and that this Office would be unable to enforce any declaration by the appellant that he would uphold the privacy rights of third parties. Therefore, I am satisfied that I cannot have regard to the applicant's offer of an undertaking in this instance.

The records under review constitute the Military Police Final Investigation Report into the applicant's complaint, and include a number of witness statements and two annexes. Having considered the contents of the records, I am satisfied that, by their very nature, they contain personal information relating both to the applicant and to the other member of the Defence Forces against whom the complaint was made, and that this information can be appropriately described as joint personal information. Furthermore, given the nature of the records, I am satisfied that the release of redacted records, with the deletion of the names of the various parties, would still result in the disclosure of personal information relating to identifiable individuals. In light of this Office's approach to the redaction of records under section 18, and having regard to the particular contents of the records at issue, I am satisfied, therefore, section 37(1) applies to all of the records.

However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section. While section 37(2) sets out a number of circumstances where section 37(1) does not apply, I am satisfied that none of those circumstances arise in this case. Section 37(5) also provides for the release of certain information to which section 37(1) applies. It provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.

I am satisfied that the release of the information at issue would not be to the benefit of the third party concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the third party to whom the information relates.

In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Furthermore, in FP v Information Commissioner, McDermott J stated that "the 'public interest' in granting access is not to be determined on the basis of the appellant's personal circumstances or desire to explore or pursue civil proceedings or criminal complaints."

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies. On the other hand, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

The records at issue contain sensitive details of the complaint of bullying made by the applicant against another member of the Defence Forces. While I understand that the applicant was informed of the outcome of the investigation of her complaint, I accept that the release of the records sought would further enhance the transparency of the Defence Forces in relation to the manner in which it handled her complaint. The question I must consider, however, is whether the public interest in releasing the records outweighs, on balance, the privacy rights of the third party concerned. In considering this issue, I am cognisant of the fact that release of the records would, in effect, amount to release to the world at large.

Having carefully considered the matter, I find that the public interest in protecting the privacy rights of the third party outweighs, on balance, the public interest in granting the request. I find, therefore, that the Defence Forces was justified in refusing access to the records sought under section 37 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Act, I hereby affirm the decision of the Defence Forces.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator